Overall, the ruling confirms that patent settlement agreements that delay a generic company’s market entry in return for a payment, or other value transfer from the originator to the generic company, are exposed to high EU antitrust risks under both Article 101 of the Treaty on the Functioning of the European Union (TFEU), which prohibits anticompetitive agreements, and Article 102 TFEU, which prohibits abusive unilateral conduct by dominant firms. While the judgment acknowledges that such agreements are not, by definition, anticompetitive, it makes clear that the scope for a successful defense is very limited where the settlement involves a value transfer from the originator to the generic company that is sufficiently large to act as an incentive to the generic company to refrain from entering the market, and which does not have a proven legitimate objective.
Key takeaways on the judgment are discussed further in the full article, click here.
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